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Is The Legal Practice Course Training Future Solicitors to Avoid Professional Negligence?
Mark R. Davies
Lecturer in Law
University of Sussex
Copyright © 1996 Mark R Davies.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
Summary
In 1993 the Law Society for England and Wales introduced the Legal Practice Course as the final major taught and examined stafe of solicitors' training replacing the previous Law Socity Finals Course. In this article it is argued that many of the occurrences of solicitors negligence result not from a lack of legal knowledge but from poor working practices. The article considers whether the LPC meets the challenge of better preparing future solicitors for a modern and changing practice environment. It will be argued that the consideration of solicitors negligence has an important contribution to make to the current debate about the measurement of the quality of professional services. From this consideration will be given to the question whether the LPC, coupled with some current perceptions of the quality of the training contract, is the best way of minimising solicitors negligence in the future.
Contents
IntroductionThe Problem of Solicitors' Negligence
Contents of the Legal Practice Course
The Aims of the Legal Practice Course
Quality and the LPCThe Core subjects within the LPC
ConveyancingWills, Probate and Administration
Will the deficiencies of the Legal Practice Course be remedied in the training contract?
An alternative to the current training model
Appendix 1 Common errors leading to conveyancing negligenceAppendix 2 Common errors leading to negligence in the area of Wills & Probate
Appendix 3 Common errors leading to negligence in litigation
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Introduction
The Legal Practice Course (LPC) was introduced by the Law Society for England and Wales in 1993 as the final major taught and examined stage of solicitors' training. The new course has been described as "the foundation for the most profound changes in terms of training for solicitor[s]..." (Sherr, 1992, p 164). The LPC follows in a series of attempts to re-design the vocational stage of training for solicitors. The previous attempt occurred in 1980 with the introduction of a revised Law Society Finals Course (LSF). Despite the desire to make the course relevant to the needs of trainees entering practice it was still dominated by dictation style lectures providing 'black letter' law and the description of procedures required for practice. The course was assessed at the end of ten months by means of closed book examinations which relied heavily upon the memorising and regurgitation of course material. No material was required other than that provided by lecture notes and so students were not even required to develop research skills, let alone other skills required of a solicitor. In addition, the course syllabus, consisting of conveyancing, wills and probate, family law, consumer and employment law, company law, criminal and civil litigation and solicitors accounts seemed to have in mind the relatively small high street practice specialising in private client work, as the major destination for students (Sherr, 1992, p 164). Sherr suggests that in reality, by the end of the course in 1992 some 70 per cent of trainees were entering large city practices whose income predominantly resulted from commercial work (Sherr, 1992, p 164).
Following the lead of the Bar, which in 1989 had introduced a more skills oriented Bar Finals Course, the Law Society reconsidered the final stage of solicitors training. Criticism was expressed that the LSF did little to prepare students for the realities of practice and that the law and procedure which was learned would quickly become out of date (Sherr, 1992, p 164). In fact, because of the need to publish a syllabus and set examinations nationally, on occasions law and procedure was taught and examined even though it was already outdated. It was in this light that the LPC was devised. The aim was to focus to a much greater extent on the acquiring of skills in order that not only could law and procedure be experienced in a context designed to reflect a practice environment, but the development of research skills should ensure that knowledge and skills could be updated throughout a practitioners career. As Sherr states:
"Although experience is the best teacher, unmonitored experience can be a very poor teacher...Only the 'hands on' work of the [training contract] can give [trainee solicitors] the real foundation for the work they will have to perform, but an introduction in a well taught way...should cement good practice into the experience of the real world. It should also, if it works properly, teach them how best to learn from that experience." (Sherr, 1992, p 166)
Central to the training of solicitors is an attempt to ensure that they can carry out their professional duties competently. One of the most striking indicators of incompetence is the cost to the profession of payments for solicitors negligence. I will argue in this paper that many of the occurrences of solicitors negligence result not from a lack of legal knowledge but from poor working practices. I will consider whether the LPC meets the challenge of better preparing future solicitors for a modern and changing practice environment. I will also argue that the consideration of solicitors negligence has an important contribution to make to the current debate about the measurement of the quality of professional services. From this I will consider whether the LPC, coupled with some current perceptions of the quality of the training contract, is the best way of minimising solicitors negligence in the future.
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The Problem of Solicitors' Negligence
The cost to the solicitors' profession of solicitors negligence has been rising rapidly over the past twenty years. Between 1976 and 1986 the gross annual premium requirement for the insurance of solicitors through the Master Policy Scheme (1) rose from £7 million to £52.3 million (Law Society Gazette 1986 p3047). From 1st September 1987 to 31st August 1994 a further £395 million was paid out by the Solicitors Indemnity Fund (2) for solicitors negligence claims and the dishonesty of partners within solicitors firms. A further £1,520 million was held in reserve by the Fund for pending claims (Solicitors Indemnity Fund 1994, p 11). In the period from 1st September 1987 to 31st August 1994 claims reported to the Solicitors Indemnity Fund have risen by an average of 18.5 per cent per year (Solicitors Indemnity Fund 1994, calculated from the information p 6). The average payment per claim in this period was approximately £15,000 (Solicitors Indemnity Fund 1994, p 8) In addition to the overall amounts paid out by the Indemnity Fund, the individual firm of solicitors involved has to pay the first part of a successful negligence claim in the form of a self insured excess. At present this can range from £3,000 to £150,000 depending upon the annual gross fees of the firm. It can be seen, therefore, that negligence is an expensive problem for the solicitors profession, both in terms of financial expense and the damaging effect successful claims have upon the reputation of the profession as a whole.
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The Training of Solicitors
The usual training method employed to qualify as a solicitor is to read for a qualifying law degree, or other degree plus the one year Common Professional Examination (CPE). This is followed by the one year vocational stage of training, currently consisting of the LPC. Finally, a two year training contract is undertaken with a firm of solicitors authorised by the Law Society to take trainees. Beyond this, solicitors are required to undertake Continuing Professional Development (CPD) throughout their career. The academic law degree or CPE does not generally provide students with formal practical training in skills which they may require if they subsequently enter practice as a solicitor . (3) Rather, the academic stage is usually seen as being intended to ground students in the academic study and appreciation of law in a range of contexts, for example by means of a critical and socio-legal approach as well as the more traditional 'black letter' analysis of legal rules. The academic stage should therefore provide the student with a rounded education as well as providing pre-requisites for entry into the legal professions.
Given the nature of the law degree or CPE, if by the time a future solicitor enters legal practice he or she is to have had exposure to the problems encountered in practice which lead to negligence, this will usually have to have occurred at the LPC stage of training or in the training contract.
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Contents of the Legal Practice Course
The LPC consists of four compulsory 'core' subjects: Business Law and Practice, Civil and Criminal Litigation, Wills, Probate and Administration and Conveyancing. In addition, students must also study five skills considered to be central to solicitors practice: Drafting, Research, Advocacy, Interviewing and Negotiation. The only aspect of the LPC from which the student has a choice is that of two option subjects, chosen from a variety on offer by the LPC provider. Providers are guided by provisions laid down by the Law Society in a set of Legal Practice Course Board Written Standards (the written standards). In considering whether the LPC adequately addresses the problem of solicitors negligence, I will concentrate on the compulsory elements of the course, the 'core' subjects and the skills.
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The Aims of the Legal Practice Course
The LPC should "(i) prepare the student for general practice; (ii) provide a general foundation for subsequent practice" (Written Standards 1995). The student should, inter alia, be able to complete a transaction in a manner which effectively achieves the client's objectives. The student should be able to identify any difficulties which may arise, and also be able to demonstrate an awareness of the limits to his or her own competence and therefore know when to ask for assistance. The written standards therefore recognise that students and trainee solicitors are not to be expected to perform to the same level of competence as a fully qualified and experienced solicitor. The assumption is made that the trainee will be supervised and should have the opportunity to ask for assistance. However, I will argue that in order for the trainee to know when to seek assistance, or when to take particular care, the substantive elements of the LPC must identify to the student the most common mistakes made by solicitors and where possible the likely reasons for such mistakes.
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The Quality Debate
A general interest in the measurement of the quality of professional services, coupled with specific debates raised by developments such as Legal Aid Franchising, has led to much consideration recently about the measurement of quality and the teaching and assessment of skills. I will explore some of the key arguments in order to consider whether 'solicitors' negligence' deserves a place in the array of devices used to measure 'quality'.
'Quality' is not easy to define. Paterson et al suggest that it can range from the striving for excellence at one end of the spectrum, to fitness for purpose and the meeting of client needs and expectations at the other end(Paterson et al 1994, p 139). Goriely suggests that most British studies have focused upon one or two of the following factors: the client orientation of the service, client satisfaction, the accurateness of advice, the efficiency and effectiveness of the service. This reinforces the proposition that process or output measures are likely to be more directly indicative of quality than input or structural measures. Measurements of output can be obtained from a variety of sources, including clients, other lawyers and the lawyer's own perception (Sherr et al, 1994, p 142). All such sources of measurement have their difficulties. Clients, in particular one shot private clients rather than business clients who make regular use of solicitors, are unlikely to be in a position to assess quality. The private client focus may be more on image than substance. In the case of other lawyers, they may have their own agenda for determining quality. For example, a 'radical' criminal practitioner may view the more 'mainstream' practitioner as being too co-operative with the police, and so judge the quality of work undertaken as poor. This may contrast with the view of another 'mainstream' solicitor who sees the same work as being of high quality (see Travers 1994, p 173). Self assessment may well require the solicitor to balance the possibly conflicting issues of quality and income (Sherr et al 1994, pp 139-155). Travers suggests that given the difficulty of achieving any objective measure of quality, a better course would be to move away from the search and to "encourage professionals to become more reflective about their own activities" (Travers 1994, p 179). This may be effective if such self reflection allowed quality to increase alongside income or, alternatively, if it encouraged the professional to fully consider the wider range of professional identity beyond income.
Consideration of solicitors' negligence claims can add to the quality debate. Determination by the courts of whether a solicitor has been negligent provides an insight by an independent knowledgeable third party into the quality of a solicitors' practice. Consideration of negligence overcomes the difficulties of relying upon the untrained view of an lay client or the pre- determined agenda of another lawyer. However, as with other quality measures, the shortcomings of the negligence approach must also be recognised. In order for a negligence claim to be brought the problem must have been spotted by the plaintiff (usually but not always the client of the solicitor) and this must have been accompanied by the financial ability and personal resolve to bring a claim against a professional adviser. Of the claims which are brought only a small percentage will reach trial and an even smaller percentage the pages of the law reports. The study of reported cases therefore represents a small sub-group of solicitors' negligence matters. These difficulties can be overcome to an extent by widening the scope of research to include settled cases. This, however, raises its own difficulties. These include the ethical considerations of researching case files (see Davies 1994), and the fact that cases settled on the advice of the lawyers involved in the litigation do not have the benefit of the full evidential and judicial consideration. Negligence can also be something of a blunt instrument in terms of measuring quality. The solicitor falls on one side or other of the line of negligent/not negligent. It could be said that this difficulty is shared by other measures of quality, for example, clients and other lawyers are giving a subjective yes or no consideration of whether the work of the lawyer in question was of sufficient quality. Beyond this, greater analysis of the arguments of the judiciary in negligence cases or the opinions of clients or other lawyers commenting upon the quality of a lawyers work, can only give a general idea of how negligent the solicitor was or how high or low the quality of the work. Such measures of 'threshold competence' may seem less sophisticated than, say, the five grade quality continuum suggested by Paterson et al (1994, p142). However, it may be less of a difference when in the practice of grading, agreement has to be reached upon which grade a matter should be given, and the dangers of subjectivity and opinion once again emerge. Sherr comments that:
"...quality standards are always proxies for the true quality of service...developing a plurality of systems is likely to be important to the further development and refinement of the notions of legal competence...."
It may be advocated that the consideration of negligence has an important place within this plurality.
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Quality and the LPC
In terms of educational theory 'capability' may be a more appropriate term than 'competence' to describe what the LPC is striving towards. Stephenson et al describe capability in terms of confidence in one's knowledge, skills, self esteem and values. In particular:
"Capable people have confidence in their ability to (1) take effective and appropriate action, (2) explain what they are about, (3) live and work effectively with others and (4) continue to learn from their experiences...." (Stephenson et al 1992, p 2).
Capability is part of specialist expertise, allowing the application of skills and knowledge to varied and changing situations, and providing for continuing personal development beyond formal education. It is further suggested that because ability to adapt and update requires confidence and judgement students should develop this by being directly involved in deciding what they learn and how they learn it.
The guiding ethos behind the LPC appears to be one of developing 'capability'. However, in this paper I use the term 'competence' in discussing the standards to be achieved to avoid negligence. This is justified in part on the grounds previously discussed that ultimately negligence is a yes/no question, a question as to whether the 'threshold competence' has been achieved. A second and perhaps more important reason is that the Law Society in discussions about the development of the LPC and subsequently have used the term 'competence'. Nicholas Saunders, Head of Legal Education with the Law Society at the time of introduction of the LPC defines 'competence' as:
"Knowledge plus skill...[including] the ability to perform certain basic tasks required by the trainee...[and] the ability to move efficiently and quickly into a completely new area and absorb the subject." (Saunders 1993, p 111).
This definition in many ways closely resembles Stepenson's 'capability'. Jessop also uses 'competence' in a manner similar to Stephenson's use of 'capability' when he states that:
"...competent performance at work...requires employees to think, plan, make decisions and communicate, all of which call upon...knowledge, principals, rules, procedures and so on." (Stephenson 1990. p 39)
The choice of term therefore becomes one of semantic preference. I shall generally use the term 'competence' in this paper to include not only the 'threshold competence' required to avoid a successful negligence action but also to consider whether the LPC effectively develops in students the ability to adapt to the variety of unusual and changing circumstances likely to be encountered by a solicitor in practice.
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Skills within the LPC
The Law Society was influenced in the planning stages of the LPC by the National Council for Vocational Qualifications' (NCVQ) approach to competence. Central to the NCVQ approach is the description of a job in terms of outputs and the standard of performance needed to satisfactorily achieve these (Maughan et al 1995, p 262). In this context the written standards describe in broad terms the skills required to practice competently (Maughan et al 1995, p 264). One potential difficulty with the NCVQ and Law Society approach is that the syllabus and requisite standards are set centrally. This can offer greater scope for ideology to creep in and for suggestions for change from outside to be undervalued. Jones illustrates this by pointing out that despite the strong evidence at the time the LPC was being planned that the majority of trainees entered commercially oriented practice, the Law Society still focused upon the symbolic status of domestic conveyancing and wills & probate as being central to the LPC syllabus (1993). The output measure of competence may also hide other serious deficiencies. An obvious example is that a person may, by adopting a surface approach to training, produce what appears to be a competent result, for example by appearing to make effective use of a checklist during an interview, but lack the underlying understanding of the skill and so have difficulty in adapting the skill from a classroom environment to the unpredictability of practice. It is considered to be particularly difficult to devise criteria which satisfactorily assess both process and performance (Maughan et al 1995, p 269). The inevitability of a mass production feel to the current LPC is likely to exacerbate the difficulties of distinguishing process and performance.
Another question mark over the current LPC is its separation of skills from substantive law. The assumption appears to be that legal practice consists primarily of "the manipulation of a given base of knowledge by a 'tool kit' of techniques and skills" Maughan et al 1995, p 273). This conflicts with recent thinking which considers professional practice to involve the interaction of knowledge with values, attitudes and behaviours and that skills need to be developed in the context of feedback which can then be used to continue the development of each of these factors (Maughan et al 1995, p272). In effect the teaching and practice of skills best able to develop capability. Brayne encapsulates the problem when saying that:
"The trouble is, on the LPC, that short exercises assessed on any checklist tend to reveal superficial manifestations of skills, and are poor at diagnosing underlying habits...." (Brayne 1994, p 236).
Also of concern is that, as with the LSF, assessment dominates the LPC, and so the primary question for the student remains not, 'will I be a good lawyer?', but, 'will I pass the test?' (Brayne 1994, p 227). Even though skills are assessed separately from substantive knowledge, the written standards do provide for skills competence to be demonstrated in a practical context and to show correct application of law and procedure. This does, however, have its practical difficulties when the assessor has to decide the extent to which a skill can be demonstrated poorly yet still be competent and also how a skill can be competently demonstrated when up the 50 per cent of the substantive law and procedure underlying it is incorrect (Brayne 1994, p 235). This position is supported by the authors own experience of Law Society Assessment visits of an LPC course. The assessors appeared to be of the opinion that as it was 'skills' rather than substantive knowledge being assessed, reasonable leeway should be allowed for errors in substantive knowledge. However, it appeared to be accepted that no method was readily available to say just how this should be done and as a result a large degree of intuitive opinion as to whether a skill 'looked' to be competently demonstrated came to the fore. In the context of solicitors negligence the appearance of a well developed skill, for example an impressive looking draft of a document, a confident negotiation stance or a sympathetic and well structured interview is far more likely to result in negligence if underlayed by important errors of law and procedure than the opposite position where the outward manifestation of the skill are relatively unrefined but the underlying requirements to perform the task competently are essentially sound. Because skills assessment on the LPC is carried out in isolation and an apparently high level of substantive error does not preclude being assessed competent, Brayne suggests that almost no one will fail the skills assessment (Brayne 1994, p 235). Also, this approach to skills assessment may encourage a surface rather than a deep approach to learning (Macfarlane 1992). The alternative approach of fully integrating skills with the acquisition of substantive knowledge is not without its difficulties. In particular the difficulty of genuine integration and avoidance of the danger of substantive knowledge excessively dominating. Skills education should "value the accumulation of experience at least equally with the acquisition of facts" (Macfarlane 1992). An effective integration of substantive knowledge and skills should however produce a more effective approach and achieve one of Macfarlane's aims that:
"In skills education the acquisition of knowledge is exemplified by the 'active' change in patterns of thinking brought about by experiential problem solving situations." (Macfarlane 1992, p 303).
A possible danger with the current state of the LPC is that whilst individual law schools are guided by the written standards on how to teach and assess skills, and each LPC has to pass the initial validation and annual monitoring by the Law Society, the question arises as to whether the theoretical tools are available to do this. It may be argued that skills teaching merely entrenches another form of doctrine which goes largely unquestioned (Macfarlane 1992, p 303). Macfarlane concludes that the theory relating to the teaching of skills is very much in its infancy. LPC course design and the validation and monitoring process could therefore be said to have taken place in a theoretical vacuum, and that practices may become the accepted norm without being subject to serious challenge (Macfarlane 1992, p 313)
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The Core subjects within the LPC
In order to consider whether the LPC adequately prepares students to avoid future professional negligence, I will consider the substantive knowledge and skills requirements laid down by the written standards in relation to the four core subjects. By comparing these provisions with what appear to be common causes of solicitors' negligence, consideration can be given to whether the LPC addresses the requirements of negligence as a measure of quality. I have already suggested that it is a difficult task to obtain a sufficiently broad base of information to confidently identify common causes of solicitors' negligence. For the purposes of this paper reported cases are used as the major source of such information, supplemented by generalised commentary from those closely involved in the field (primarily the Solicitors Indemnity Fund and solicitors acting in the litigation of claims) to support the patterns of negligence deduced from the cases. It was not practical in terms of the time available for all of the cases in the area to be considered. Because the information required was of a factual nature, 'what went wrong and why?', cases were identified by carrying out keyword searches on LEXIS. Using subject specific words such as 'conveyancing' in combination with words such as 'negligence', 'mistake' and 'error' provided sufficient cases to work with. One noticeable fact about these cases is that they range across a relatively broad time span. This raises the concern that the older cases may have involved different working practices than those employed today. An obvious example would be the comparison of unregistered conveyancing before the widespread availability of photocopying with registered conveyancing in today's computerised environment. In order to address this, an attempt was made to restrict the cases identified by the search to within the last 20 years, but this limited the numbers excessively. On balance it was therefore considered that the underlying skills requirements of solicitors had not changed to such an extent, and that older cases could still provide useful information about the general nature of mistakes constituting negligence.
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Conveyancing
The conveyancing element of the LPC allows the student to build upon academic knowledge of land law, in order to acquire the skills to carry out the range of property work undertaken by solicitors in practice. In the period 1st September 1987 to 31st August 1994 conveyancing has accounted for the highest proportion of negligence claims against solicitors, representing approximately 51 per cent of such claims in terms of the amount paid to claimants (Solicitors Indemnity Fund 1994, p13). The cost to the profession of conveyancing negligence over this period was close to £200 million. Consideration of the causes of conveyancing negligence, and the provision within the LPC to reduce these may be seen as very important if the costs of solicitors negligence are to be reduced.
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The Conveyancing Syllabus in the Legal Practice Course
The written standards provide, inter alia, that the student should be able to: identify the client's goals, identify and investigate the relevant facts, research and identify the relevant legal issues, advise the client on the legal consequences of his or her proposals, draft documentation to effect the transaction and recognise the potential for a conflict of interest and act within the solicitors professional conduct rules (Written Standards 1995). The written standards go on to further sub-divide and detail the knowledge and skills which the student should gain. On the procedural side, the student should be able to: carry out pre-contract and pre-completion searches, identify any difficulties arising from the searches and enquiries, identify any planning considerations, advise the client on the legal affects of the results of searches and enquiries and decide what further action may need to be taken. The student should also consider how the conveyancing transaction is being financed. If the solicitor is acting for a mortgage lender as well as the purchaser, the needs of this mortgagee must also be addressed. The written standards assume that the student will have a sound grasp of the contract and property law which underpin conveyancing transactions.
Do these written standards address the most common problems of conveyancing negligence in practice?
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Common Problems leading to Conveyancing Negligence
One of the most striking factors which arises from a consideration of solicitors' negligence cases in the area of conveyancing is the number of such cases which involve the commission of very basic errors. The cases identified in Appendix 1 list a catalogue of errors many of which could have been avoided if simple precautions were implemented into conveyancing practice. For example, the use of a systematic diary system with backup provisions to ensure that time limits are not missed. Ensuring that the solicitor's work load is not so high as to prevent documents, whether they are simple search results or complex business leases, being read thoroughly. Only rarely do errors appear to result from a significant lack of knowledge by the solicitor. Domestic conveyancing in particular has become a high volume, low fee area of work, having to be carried out quickly if it is to be profitable. To achieve this it may be necessary to employ methods which increase the risk of errors being made, or necessitate the omission of safeguards. In light of such pressure, the requirement, for example, to carry out certain searches and enquiries can become one of routinely requesting the searches and making the standard enquiries and then when the replies are received placing these on the file without ever giving them proper consideration. It has been suggested that there is effectively a price war amongst the providers of conveyancing services. This leads to work being carried out at a price where it would be extremely difficult to both take the care necessary to minimise the risk of error and at the same time to make a profit. Some firms have been able to make use of staffing structures and technology to allow high volume domestic conveyancing to be carried out both profitably and efficiently. Other firms, however, may have been unable to afford to take this route and in order to compete are forced to take on too many cases and to cut corners in carrying out the work . (4) It may also be suggested that if, increasingly, high volume conveyancing practice is carried out by para-legal staff rather than qualified solicitors, consideration of whether the LPC prepares students for conveyancing practice diminishes in importance. It may, however, be argued that the contrary applies. Non-qualified staff have to be adequately overseen by a solicitor (failure to do so may result in disciplinary action before the Solicitors Disciplinary Tribunal, see for example decision 4824), and in setting up, training staff and monitoring a high volume conveyancing operation the 'skills' required for conveyancing will have to be employed. Any lack of competence by such a solicitor could therefore be imparted into the whole operation and magnified accordingly.
The written standards appear to anticipate many of the errors common to conveyancing. Some of those errors which are not addressed within the LPC may be considered too advanced for trainee solicitors. For example, the interpretation of complex clauses in leases may fall within this category, although it is probably the case that once in practice some trainees are given a full caseload and may be left much to their own devises, including dealing with complex or unusual matters. If consideration of more complex matters is not within the scope of the LPC, thought should be given to whether such issues should be addressed by means of formal training post LPC and post qualification as a solicitor. As previously stated, solicitors are required to undertake CPD each year as a condition of being allowed to practice. However, the solicitor can choose from a wide range of courses offered by commercial providers. The courses chosen need not reflect any particular problem area the solicitor may be facing and, in the current economic climate, many solicitors may simply choose courses which are relatively cheap and close at hand, rather than choosing those which would provide the best educational benefit. Also, CPD has traditionally concentrated on updating knowledge rather than upon enhancing skills or developing learning strategies, although some CPD providers may be moving slowly in the direction of skills development (Webb 1995, p 3). A counter pressure to this move comes from the increasing concern with the cost of CPD. One response from the Law Society is to allow greater flexibility in obtaining CPD, including allowing solicitors to undertake self-managed reading from authorised sources. If such reading is largely 'black letter' in nature then this moves CPD even further away from skills development. One re-design of CPD suggested by Webb is to move to the concept of 'action research'. This would provide for individualised learning and the capacity for continuing assessment of professional behaviour, responsibilities, assumptions and values. It would encourage practitioners to be habitually conscious of various conditions of practice (Webb 1995, p 9). This would be achieved by practitioners, either alone or in collaboration with academic researchers, engaging in a systematic attempt to understand and change practice by reflection upon their own actions. In this way practice skills and knowledge would be systematically refined (Webb 1995, p 8). However, the present position is that in the absence of change to the CPD structure and ethos, CPD is unlikely to be a reliable mechanism for addressing serious inadequacies in the LPC or training contract.
A noticeable omission from the written standards is any reference to the cut price 'production line' nature of much conveyancing in practice. A student successfully completing the LPC may enter a training contract having the legal and procedural knowledge needed to carry out a range of conveyancing tasks, but totally unprepared for the volume of work faced in the practice environment. If the training firm happens to cut corners in order to deal with a high volume of work, the trainee may quickly forget the good practices taught on the LPC and adopt these more risky practices. The Law Society could target the new entrants to the profession and help them to resist being indoctrinated into unsatisfactory practices. LPC students should become familiar with handling a high volume of cases and with good file management. The requirement that the LPC student knows his or her own limitations and when to ask for help, should be extended to emphasise the future solicitors' personal liability under the professional conduct rules and in professional negligence if he or she simply takes on unsatisfactory practices used in the employing firm . (5) In this way trainee and junior solicitors should be supported by the Law Society in resisting taking on a workload beyond their competence or in undertaking work in a manner they know to be undesirable.
A further source of potential problems not fully addressed by the written standards is the need to cross reference certain information between different specialist disciplines. Cases such as Bell v Peter Browne [1990] 3 All ER 124 illustrate this. The solicitor in this case was primarily concerned with the client's divorce, but negligence arose because of the conveyancing matters which came about as an aspect of the property division between the husband and wife. As solicitors increasingly specialise they need to be trained to spot issues which may fall outside of their specialist areas in order that they can pass on this aspect of the matter to another department within the firm or carry out updating research in order to competently deal with the matter themselves.
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Wills, Probate and Administration
In the period 1st September 1987 to 31st August 1994 trust and probate matters, including inheritance tax and taxation, accounted for approximately six per cent of solicitors negligence claims in terms of amounts paid to claimants (Solicitors Indemnity Fund 1994, p 13). Whilst this represents a much smaller problem than that of conveyancing negligence, these cases have nevertheless cost the solicitors profession around £21 million over the period of existence of the Indemnity Fund (Solicitors Indemnity Fund 1994, calculated from pp 11 and 13).
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The Wills, Probate and Administration Syllabus of the Legal Practice Course
On completion of the wills unit "the student should be able to advise a client on testamentary dispositions and intestate succession, draft a will and conduct the administration of an estate, including obtaining a grant of representation...." (Written Standards 1995). Specific aspects of this area of work with which the student should become familiar include: identification of relevant facts, researching legal issues, advising the client of the legal consequences of his or her proposals, and understanding the appropriate tax implications. In order to achieve these aims the student should be able to: "select and modify appropriate precedents, express testamentary wishes clearly and unambiguously, and make appropriate arrangements for the execution and attestation of the will".
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Common problems leading to negligence in wills and probate cases
A similar picture emerges to that concerning conveyancing. A significant number of the cases result from simple errors and the failure to progress matters quickly and efficiently. The cases given in Appendix 2 illustrate the types of error which occur. Not surprisingly, given that the Indemnity Fund statistics show a far lower occurrence of wills and probate negligence compared with conveyancing, the list of reported cases involving wills and probate negligence is shorter. Another reason for the relative lack of reported cases is the nature of the prospective claimant. If a solicitor is negligent in the preparation of a will the error will often not come to light until after the death of the client. The potential claimants, usually intended beneficiaries, are third parties with no contractual rights against the solicitor. Only in the 1980 case of Ross v Caunters did the courts fully begin to come to terms with the right of such third parties to bring an action in tort against the solicitor. Therefore, prior to this many potential claims by disappointed beneficiaries will not have been litigated. Many of the errors simply involve the failure to act sufficiently quickly in taking and dealing with instructions or inadequate diary and safety mechanisms to ensure that time limits are adhered to. Some of the cases could result from a lack of knowledge, for example the solicitor being unaware of the effect of marriage of a will, the restrictions on who should witness will or the subtleties of drafting or interpreting a trust document. However, some of these errors can equally be attributable to the solicitor failing to adequately communicate information to the client or the failure to connect certain knowledge, such as the likelihood that the clients will marry, to the matter at hand.
The relatively simple nature of many of the errors suggest once again that it is not sufficient for the LPC student to be taught the legal and procedural aspects of a wills and probate matter, but that this knowledge should then be put to the test in the context of a heavy caseload and the need to work quickly on a range of different files and different matters.
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Business Law and practice
In the period 1st September 1987 and 31st August 1994 Commercial law accounted for approximately six per cent in number and almost thirteen per cent in terms of the sums paid of solicitors negligence claims (Solicitors Indemnity Fund 1994, p 13). These figures suggest that whilst the total number of claims is relatively low, the average cost per claim is particularly high. This probably reflects the high value of the average commercial transaction, and illustrates the particular danger in terms of cost of a mistake being made within this field.
The Business Law Syllabus of the Legal Practice Course
The written standards provide that on completion of the business law unit the student 'should understand the nature and structure of the different business media...should be able to select an appropriate medium and structure to meet the client's commercial requirements, and should be able to advise on the legal and taxation implications of, and procedures required in, common form transactions and developments arising during the life and development of the business' (Written Standards 1995). These requirements are sub-divided into a wide range of issues involving the identification of client goals, research, drafting, advising the various parties involved in sole trader, partnership and corporate forms of business. These requirements would include, inter alia, the taxation implications of setting up, running and disposing of a business, drafting partnership agreements and various company documents and the dissolution of a business.
The most striking factor about the business law syllabus is its breadth. The student is expected to come to grips with the major subjects of partnership law, company law, business taxation, bankruptcy and insolvency. This may be designed to give the student a wide introduction to business law which may then be built upon in practice. However, it may be argued that skimming the surface of such a wide range of subjects does not even provide the student with a basic level of competence. The danger of this is that firms providing training contracts may assume more competence from the student than the LPC actually provides. One solution would be the development of an alternative specialist LPC in business law. This, however, could have the effect of allowing large commercial firms to dictate to a large extent the future training of solicitors and lead to the emergence at the training stage of a two tier profession.
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Common problems leading to negligence in business law.
There can be a very wide range of work undertaken within the commercial department of a typical solicitors firm. The choice of solicitors negligence cases chosen to illustrate typical errors within the field of business law is bound to be somewhat arbitrary. Examples of illustrative cases of solicitors negligence within the business law field include: failure to register a charge which would have secured the company debts and so would have prevented the need for the creditors to pursue the guarantors Re Foster (1986) 2 PN 193; lack of awareness that a company may be restricted by statute from purchasing its own shares Central Trust Co v Rafuse (1986) 31 DLR (4th) 481; Examples of mistakes which overlap between business law and other areas of solicitors practice include: a solicitor negligently advising the client to purchase a lease of residential property in the name of a company but failing to address the fact that the client would be unable to obtain a statutory tenancy when the lease expired Murray v Lloyd [1989] 1 WLR 1060; failure to identify that the lease of a business premises prevented the use to which the client intended to put the building Transportation Agency Ltd v Jenkins (1972) 223 E.G. 1101. Errors may also occur when the solicitor is retained on a matter where other professionals, for example accountants, are involved. The solicitor should ensure that his or her retainer clearly identifies the scope of each professions' responsibility where there is scope for overlap, for example in the context of tax advice. This ensures that the solicitor does not omit to do something simply because it was assumed that the other profession would deal with it. Other errors can occur in business transactions when the solicitor does not have sufficient knowledge of regulations associated with the business in question. For example, various businesses require licences in the field of transport, consumer credit or food safety. Such matters are not addressed by the written standards. It may also be more likely for solicitors to have to prepare unusual one off documents in the business law field than in other areas, putting the solicitors' legal research and drafting skills to greater test.
Unlike conveyancing and wills and probate work, errors in the field of business law are far more likely to result from a lack of knowledge than more simple clerical and file management errors. This may be because of the very wide range of business law work, resulting in a much greater capacity for unfamiliar areas to be encountered. The written standards may be attempting to deal with this by introducing the student to a wide range of business law subjects. However, as has already been discussed, this may be at the expense of the student gaining in depth knowledge or understanding of any of these areas. The student may therefore enter practice with the belief that he or she has detailed business law knowledge, when in fact the surface has hardly been scratched. The training firm may also look at the business law syllabus and assume that it provides far more detail than it actually does. Even large specialist commercial firms may have difficulty, within the context of the training contract, in giving a trainee solicitor a solid grounding in business law. This is illustrated by the following quote from a trainee solicitor in a large City practice:
"...I have been feeling more pressure to complete a great deal of work in a short time and consequently I have not learnt as much as I should from this work. I also feel that...I do not have the specialist knowledge of a corporate lawyer...and this is often not taken into consideration when given deadlines." (Moorhead et al 1995, p 43)
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Litigation and Advocacy
Negligence involving litigation, including personal injury litigation, accounted for approximately 22 per cent of claims against solicitors in the period 1st September 1987 to 31st August 1994. The cost to the profession for these claims was close to £87 million (Solicitors Indemnity Fund 1994, p 13). Litigation is therefore second only to conveyancing as the largest subject area in which negligence occurs.
The Litigation and Advocacy Syllabus of the Legal Practice Course
The written standards for litigation and advocacy cover both civil and criminal work and are fairly wide ranging. On a general level they provide that "the student should have an appreciation of the nature of civil and criminal litigation, should be able to identify the critical steps in the process...and should have gained experience through practise of some or all of the stages of litigation" (Written Standards 1995). This specifically includes the student gaining the ability to identify the relevant factual and legal issues, identification of the alternative means of achieving the client's goals and advising the client of the legal consequences of the proposals. The student should then progress to the identification of the overall nature of the transaction and dealing with the matter through the litigation process, including the drafting of requisite documents. The student should gain the ability to advise the client on the cost options in order to finance the matter, including making application for legal aid. The written standards assume that the student will have prior knowledge of the court structure and the common law offences which provide the basis for the litigation process.
Problems Leading to Litigation Negligence
There are a wide range of matters which may involve aspects of the litigation process. This means that similar problems to those discussed in the context of business law are encountered when attempting to identify reported cases of solicitors negligence in the litigation area. The written standards take a broad approach to the subject, but within the LPC as a whole there is scope for specialist aspects of litigation such as personal injury, commercial litigation and matrimonial work to form the basis of separate option subjects. In reviewing the case law for litigation negligence the position has been adopted that the litigation and advocacy head of the LPC is aimed at providing the basis for all litigation, including more specialist areas, and as such any case which indicates a failure in litigation knowledge or procedure is potentially worthy of note.
A more serious problem in searching for cases involving litigation negligence is the possible distortion caused by the advocates immunity. Advocates are immune from suit for claims in negligence based upon an alleged failure in the manner in which a case was conducted in court, or the way in which a case was handled in pre-trial work closely connected with the presentation of the case in court . (6) It is not within the scope of this article to consider the merits or otherwise of the advocates immunity. It may be argued that because an advocate cannot be held negligent then such errors are not of concern. This should not be the case. Just because there cannot be a finding of negligence should not mean that the Law Society and the solicitors profession should not be concerned with promoting the highest quality in the preparation for and conduct of a trial. As competition for the provision of legal services continues to increase, poor quality of work in any area may result in adverse publicity and an associated loss of income for the profession. It is also of note that the courts do have the power to award costs against, inter alia, a solicitor if it considers that such costs have been wasted as a result of an "improper, unreasonable, or negligent act or omission...." (Courts and Legal Services Act 1990 ss 4, 111, 112).
Bearing in mind the absence of cases involving negligence in relation to advocacy, Examples of errors made by solicitors in the field of litigation are given in Appendix 3. When considering these it should be noted that the scope of a solicitors duty may well be a changing one as the distinction between barristers and solicitors increasingly narrows, for example with the extension of solicitors' rights of audience. It is usually accepted that a solicitor acting upon the advice of suitable counsel will have a valid defence to a claim in negligence. However, this will not always be the case. A solicitor should not uncritically act upon the advice of counsel where the solicitor would reasonably be expected to question the accuracy of this advice Davy- Chiesman v Davy-Chiesman [1984] Fam 48.
Errors in litigation on the whole do not appear to result from any serious lack of knowledge by solicitors. Rather, they seem to result from the lack of use of basic management and diary systems to ensure that time limits are met and that the progress and preparation for trial of cases is handled correctly. Solicitors may also fail to use the litigation process sufficiently forcefully, delaying the issue of proceedings whilst attempting to negotiate a settlement, resulting in the failure to meet a limitation period. The failure to issue proceedings promptly may also hide serious delays in the time it takes to settle cases and the resulting delay in the client receiving damages. This type of poor work is unlikely to lead to a negligence claim and so will not appear in the Solicitors Indemnity Fund statistics. Possible solutions to such problems include a system which requires the regular review of files by the solicitor, and possibly review by other members of the firm. Problems could stem from a lack of knowledge if the solicitor assumes to too great an extent that any matter of difficulty can be passed on the counsel and counsel's advice relied upon without question.
The written standards attempt to ensure that the student reaches a level of ability which will enable him or her to deal competently with a typical litigation matter. However, once in practice, the student will be faced with a large volume of cases and will need suitable case management techniques to ensure that these can be handled competently. Other factors, such as the choice of expert witness, are seen to lead to negligence but consideration of these aspects of the litigation process are lacking from the written standards.
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Will the deficiencies of the Legal Practice Course be remedied in the training contract?
Throughout this paper there has often been the implicit assumption that omission from the LPC will be made up at the training contract stage. Furthermore, the LPC can be seen as having the purpose of preparing the student for the training contract stage only and not for immediate qualified practice. This should not, however, excuse any inadequacies within LPC if research suggests that the training contract stage does not in fact meet this need. Since 1 July 1994 any firm employing trainee solicitors has to be authorised by the Law Society and must abide by a Training Code. This code requires that trainees be given experience to enable them to reach recommended standards of performance or competence in practical and administrative skills by the end of the two year training period (Stebbings 1994, p 98). One recent research project on behalf of the Trainee Solicitors Group, the 'Quality of Life Survey' (Moorhead et al 1995), provides some important insights into considerations about the actual quality of some training contracts. The following findings from this research have relevance to the current study.
An indicator of the pressure trainee solicitors are under, and the workload they are faced with, is the average number of hours worked per week. Approximately 36 per cent of respondents worked between 46 and 80 hours (Moorhead et al 1995, pp 16 and 44). When surveyed about the quality of formal training they received 21 per cent of respondents expressed dissatisfaction and a further 24.5 per cent were unwilling to positively recommend their training (Moorhead et al 1995, p 18). Similar responses applied to informal training, with over 22 per cent claiming dissatisfaction and a further 21 per cent being unwilling to express satisfaction (Moorhead et al 1995, p 19). Thirty-six per cent of respondents were dissatisfied or neutral when asked whether they considered that their training gave them a 'strong basis for qualification'. Interestingly, those respondents who were newly qualified solicitors, and so probably in the strongest position to answer this question were the most critical (Moorhead et al 1995, p 24). In order to counter the possible subjectivity of the respondents perceptions as to the quality of their training contract, the survey also asked for the amount of time the respondent's firm devoted to training. A fifth or less of the average trainees working time was spent on training or supervised work. Newly qualified solicitors devoted less than one tenth of their time to being trained or supervised. The vast majority of trainee and newly qualified solicitors' working time therefore appeared to consist of working unsupervised. Newly qualified solicitors expressed the concern that their firm often expected a totally unjustified increase in competence once they formally qualified. This manifested itself in an increased workload and a marked reduction in supervision (Moorhead et al 1995, p 31). More striking still are the findings that 45 per cent of respondents claim to have received no formal training (Moorhead et al 1995, p 25). If the LPC written standards assume that firms providing training will continue to add to the trainees knowledge post LPC, these statistics draw this assumption seriously into question. Quotes from respondents in both small and large firms suggest that some trainees consider that post LPC they have to learn everything for themselves. In expecting the adjustment to the volume and quality of work required from trainees, some firms were seen a adopting a 'sink or swim' approach. Whilst it is reasonable for future solicitors to develop self reliance in their work, the comments indicated that this was being applied at too extreme a level and too early. In some firms, respondents felt that not only were they not being supervised, but often there was no one available to give help even when it was asked for (Moorhead et al 1995, p 32). Even when supervision was available, some respondents felt that their errors were corrected without adequate explanation, so they were not really learning how to get things right the next time the problem arose (Moorhead et al 1995, p35).
It should be noted that in the case of many questions, the above survey received a positive response from the majority of respondents. However, in the case of a number a matters which reflect upon the competence of the solicitors profession, a significant minority of responses were negative. Such findings cannot be ignored when considering the omission of certain elements of training from the LPC written standards.
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An alternative to the current training model
This paper has suggested that consideration of solicitors' negligence should be included as a measure of 'quality' within the current debate as to the meaning of that term. Using this measure it has been suggested that the LPC falls short in terms of providing the skills required of solicitors to best avoid negligence. It has further been argued that such deficiencies within the LPC are not guaranteed to be remedied at the training contract or CPD stage. The immediate, and arguably justified, reaction of LPC providers may be that they cannot be held responsible for deficiencies at the later stages of a solicitor's training. However, the passing of responsibility from one stage to the next does not resolve the problem if at the end of the process the competence of solicitors is not maximized. The introduction of a strong skills element into the LPC appears to be a significant improvement over the LSF in terms of preparing students for future practice, although the current limited state of theory relating to the teaching and assessment of skills does draw into question whether the current skills provision on the LPC is being used to best effect. However, I consider that simply tampering with the current LPC to take into account skills theory will not sufficiently address the issue. Moorehead et al show that serious questions can be raised as to the quality of training contracts and that as long as the LPC stage and the training contract stage are separate each provider can blame the other for gaps in training provision.
Consideration of solicitors negligence suggests that training is required which incorporates skills within the context of the real environment of practice. The teaching of skills purely within the artificial environment of the classroom not only poses the threat of students adopting an uncritical and surface approach to their learning but also fails to impart the file management skills, the lack of which seems to account for a high proportion of solicitors negligence. In order to address these issues I would advocate the current one year LPC plus two years training contract be replaced with a three year integrated apprenticeship. Instead of providing a take it or leave it course, LPC providers would work much more closely with each firm employing trainees in order to tailor a course to fit far more closely the needs of each individual trainee. Such a course would still contain a large degree of common elements which all trainees would undertake on either a distance learning basis or a block/day release basis. This would lay the foundation of basic skills and substantive knowledge in a similar manner to the current LPC, although integrated much more into the day to day experience of practice. The basic knowledge and skills provision would be developed by means of practical case management provided by the firm coupled with a more theoretical input by the LPC provider. By means of a close working relationship LPC teachers would gain a practical and ongoing insight into the requirements of practice (whilst many LPC teachers currently maintain links with practice the LPC does not require this, and such links are usually maintained to ensure up to date knowledge of practice rather than to directly interface between the LPC and training contract experience). Firms would benefit from the overseeing of their training by academics developing an understanding of skills at a more theoretical level. Such an approach would not be such a radical departure. It could be said to be combining the best of the old non-graduate five year apprenticeship model of training solicitors with the current graduate entry route. By combining current teaching methods with an apprenticeship model many of the difficulties of teaching skills purely within the classroom could be reduced. It could also serve as a useful adaptation of skills teaching methods used in other countries, for example the highly simulated practice environment used in Australia (Jones 1993, p 100).
The major drawback in attempting to implement such a change is likely to be resistance, or at least inertia, from the current providers in the training sphere. Whilst many firms offering training contracts take training very seriously, the study by Moorehead et al strongly suggests that some firms see trainee solicitors as relatively cheap fee earners who can best learn by means of a sink or swim approach. This latter type of firm is unlikely to welcome scrutiny of its activities by academics, nor possibly to release trainees from fee earning work on a regular basis. From the LPC provider's viewpoint such a change is almost certainly going to be more difficult to organise than the current LPC. The current LPC has the benefit of neatness. LPC providers can devise their courses without reference to the firms to whom their students will subsequently go. An apprenticeship model would require much greater adaptability within courses and a high degree of co-ordination between academic institutions and solicitors firms, almost certainly involving a greater workload for both. The assumption that only students with training contracts could undertake the final stage of training would constitute a double edged sword. On the one hand it would address the current concerns about oversupply of LPC qualifiers compared with the number of training contracts available. On the other hand, concerns about certain members of society being prejudiced in the search for training contracts would be exacerbated if obtaining a training contract was a integral part of the LPC. A move to an apprenticeship model of training for solicitors would be a radical departure from the direction in which the training has taken in the last 20 years. However, it is a model which is employed widely and apparently successfully in many other fields of both graduate and non- graduate employment.
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Conclusion
The written standards conclude that "students should learn from the experience provided by the Legal Practice Course and be able to learn from experience in practice". This paper has considered whether or not the LPC can provide students with the key knowledge and skills required to avoid the most common causes of solicitors' negligence, and if not whether omissions from the LPC will be remedied once the students has embarked upon the training contract. It has been suggested that many of the causes of solicitors' negligence result not from a lack of legal or procedural knowledge, but from simple clerical, administrative and file management errors. Many of these errors may result from the pressure of work and the number of cases a solicitor is expected to handle at any one time. Whilst the LPC written standards may provide for students to learn how to deal with a variety of matters in the context of individual cases, there is no specific provision for students then to learn how to handle such cases in volume nor to develop case management skills for this purpose. It may be considered that such case management skills should properly be learned at the training contract stage. However, the Trainee Solicitors Group study into the quality of training contracts suggests that any omissions of important aspects of solicitors training from the LPC, on the assumption that they will be covered in the training contract, may be seriously flawed. Some incidences of solicitors negligence, notably in the area of business law, do arise from deficiencies of knowledge. The written standards for business law appear to attempt to maximise breadth of knowledge, but this may be at the expense of depth of knowledge. Again, any assumption that this will be remedied in the training contract is subject to serious misgivings.
The future training of solicitors should therefore combine the developing theoretical underpinning of how skills may best be learned with the real experience of case management in practice. This can best be done by working with both aspects together, classroom knowledge being applied in practice and then this experience related back to further development in the classroom. In this way a progressive cycle of self evaluation leading to further guided development can be established. The broader aspects of solicitors training and the quality of solicitors skills may also be improved by the two way sharing of expertise between lawyers in practice and those in academia envisaged by the apprenticeship model.
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Appendix 1
Common errors leading to conveyancing negligence
The failure to register an option Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp (a firm) [1978] 3 WLR 167; failure to consider the client's position before the execution of the mortgage deed Forster v Outred & Co (a firm) [1982] 1 WLR 86; failure to search the commons register G & K Ladenbau (UK) Ltd v Crawley and de Reya (a firm) [1978] 1 WLR 266; failure to warn the building society client that the solicitor had reason to doubt the bona fides of the purchaser Anglia Hastings and Thanet Building Society v House & Son (1981) 260 E.G. 1128; failure to warn the client that there was no right of way over the property Piper v Daybell, Court-Cooper & Co (1969) E.G. 1047; failure to warn the client that the property did not have planning permission Lake v Bushby [1949] 2 All ER 964; failure to check the tenancy rights of tenants occupying property Goody v Baring [1956] 1 WLR 448; failure to warn the client of the risks involved in carrying out repairs to property prior to the exchange of contracts Allard v Samson (1966) 110 SJ 229; failure to warn the client of the risks involved on exchanging contracts on a purchase before exchanging on the sale Morris v Duke-Cohan & Co (1975) 119 SJ 826; failure to consider in detail the content of a sub-lease CW Dixey & Son Ltd v Parsons (1964) 192 E.G. 197; failure to warn the client of the dangers of exchanging contracts on a purchase prior to the arrangement of a mortgage Buckland v Mackesy (1986) 112 SJ 841; sending the draft contract to the wrong client Frank v Seifert, Sedley & Co (1964) 108 SJ 523; failure to obtain the head landlord's licence to assign and permission for change of user Creech v Mayorcas (1966) 198 EG 1091; failure to spot a defect in title Pilkington v Wood [1953] Ch 770; failure to ensure that there was a right of way across the only convenient access to property Hayes v Dodd (James & Charles) (a firm) [1990] 2 All ER 815; failure to notice that a lease of business premises restricted the user intended by the client Transportation Agency Ltd v Jenkins (1972) 223 EG 1101; dealing with a divorce matter where property is being transferred into the sole name of the wife, failing to protect the husband client's interest in the property Bell v Peter Browne & Co (a firm) [1990] 3 All ER 124.
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Appendix 2
Common errors leading to negligence in the area of Wills & Probate
The failure by the solicitor to return sufficiently promptly to take full instructions to draft a will, resulting in the client dying intestate Smith v Haynes & Co (Times 3 September 1991); failure to check the position regarding settled property and to advise the client appropriately Otter v Church, Adams, Tatham & Co [1953] Ch 280; failure to advise on the affects marriage would have upon a will Hall v Meyrick [1957] 2 QB 455 (11); failure to correctly advise the client as to who should not witness the will Ross v Caunters [1980] Ch 297; failure to correctly draft a document akin to a trust Hemmens v Wilson Browne (a firm) [1993] 4 All ER 826; a solicitor accepting the provision in a will for a gift to himself without advising the client to seek independent legal advice.
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Appendix 3
Common errors leading to negligence in litigation
Failure to advise the client that the case probably had no merit Orchard v South Eastern Electricity Board [1987] 1 QB 565; failure to take reasonable steps to trace potential witnesses Holden & Co v CPS [1990] 2 QB 261; failure to take proofs of evidence from witnesses who were likely to be called to give evidence at trial Hatch v Lewis (1861) 2 F& F 467; failure to give due consideration to instructing the most suitable expert witness Mercer v King (1859) 1 F& F 490; failure to advise on the possible alternative sources of funds. The duty of the solicitor extends to considering legal aid and other sources, for example insurance, and applies to the initial contact even before the person formally becomes a client Grossman v Ward Bracewell & Co (1989) 5 PN 103; failure to attend court or to make arrangements for the attendance of witnesses Dunn v Halton (1861) 2 F& F 642; failure to issue proceedings within the statutory limitation period, or an unreasonable delay in the conduct of a case leading to its being struck out for want of prosecution Fitzpatrick v Balger & Co Ltd [1967] 2 WLR 706.
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Footnotes
1. The Master Policy Scheme was implemented by the Law Society in November 1975 to fulfil the insurance requirements laid down in section 37 of the Solicitors Act 1974. Back to text.
2. The Solicitors Indemnity Fund Limited replaced the Master Policy Scheme in 1987, as the Law Society's means of insuring solicitors negligence in accordance with the Solicitors Act 1974. Back to text.
3. There are some exceptions to this. For example, the Staffordshire University LLB requires students to undertake compulsory courses in interviewing, negotiation and advocacy. However, when viewed in the context of the whole course, such skill elements still play a relatively minor role and are not integrated into the teaching of substantive law subjects. Back to text.
4. For further discussion see Sean Webster, The Times, 3 August 1993, p 28. Back to text.
5. It is not strictly true to say that an employed solicitor is liable in professional negligence. The firm is the indemnified party under the Solicitors Indemnity Fund scheme and it is against the firm a complainant will bring an action. There are, however, reports of employed solicitors being sued by their employing firm for losses not met by the Indemnity fund, for example, the self insured excess and any increase in contributions to the Fund. I know of no reported case yet in this area. If such a case did reach the stage of trial it would be interesting to see how the court would deal with an argument by the solicitor that the mistake occurred because he or she was forced by the firm, through volume of work, to employ shoddy practices and to cut corners. Back to text.
6. See Rondel v Worsley [1969] 1 AC 191 and Saif Ali v Sidney Mitchell & Co [1980] AC 198 and also Courts and Legal Services Act 1990, s 62(1). For a more detailed discussion of this subject see Jackson and Powell 1992. Back to text.